Allowed

Sri.Sanjay Balagonda v. State of Karnataka

Karnataka HC19 Mar 2024CRL.P/2719/2022

Case brief

AI extract

What is this about?

A former MLA challenged prosecution for criminal misconduct over KLLADS funds allocated to a trust-run institution outside his constituency. The entire amount had been refunded and other accused officers dropped. Holding misappropriation ingredients absent and continuation abusive of process, the High Court quashed the proceedings.

What did the court decide?

Criminal petition allowed; proceedings in Spl. Case No.35/2017 (Crime No.3/2014) quashed; operative clause corrected on 07.11.2024 to refer to Spl.Case No.1283/2021.

Sri.Sanjay Balagonda Vs State of Karnataka — Corruption | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION No.2719 OF 2022

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BETWEEN:

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SRI. SANJAY BALAGONDA @ BALASO PATIL AGED ABOUT 49 YEARS R/AT ‘SNEHA’, PLOT NO. 17, 18, 19, 1^ST CROSS, ADARSH NAGAR HINDWADI, BELAGAVI – 590 011.

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... PETITIONER

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(BY SMT. VIJETHA R.NAIK, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTA POLICE BELAGAVI, REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD.

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... RESPONDENT

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(BY SRI. VENKATESH S. ARBATTI, SPL.PP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C., PRAYING TO ALLOW THIS PETITION AND QUASH THE COMPLAINT, FIR IN CRIME NO.03/2014 REGISTERED BY LOKAYUKTA POLICE, BELAGAVI, CHARGE SHEET DATED 26/04/2017, ORDER OF TAKING COGNIZANCE DATED 27/04/2017 IN SPL.C. NO.35/2017 BY THE IV ADDL. DISTRICT AND SESSIONS

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JUDGE AND SPECIAL JUDGE, BELAGAVI FOR THE OFFENCES PUNISHABLE UNDER SECTION 13(1)(c) R/W 13(2) OF PREVENTION OF CORRUPTION ACT AND ALL FURTHER PROCEEDINGS PURSUANT TO THEREIN IN RESPECT OF THE PETITIONERS/ACCUSED HEREIN.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.01.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court calling in question proceedings in Special Case No.35 of 2017 pending before the IV Additional District & Sessions Judge and Special Judge at Belagavi arising out of crime in Crime No.3 of 2014 registered for offences punishable under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short).

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Heard Smt. Vijetha R Naik, learned counsel appearing for the petitioner and Sri Venkatesh S.Arabatti, learned Special Public Prosecutor for the respondent.

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Facts, in brief, germane are as follows:-

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The petitioner, at the relevant point in time, was elected Member of the Karnataka State Legislative Assembly from Belagavi Rural Constituency from Bharatiya Janatha Party (BJP). It is the averment in the petition that the petitioner being a Member of the Legislative Assembly for 25 to 30 years has been striving to uplift the uneducated by providing education to the needy through his educational institution run in the name and style of Gomatesh Vidhya Peetha (for short ‘Vidhya Peetha’) through a trust which was established by H.H. Bhadrababu Swamiji. It is the further averment that there are 8000 to 9000 students being educated in the educational institution with a nominal fee. The institution also receives aid from the Government for it being an institution run by the religious minority.

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During the period when the petitioner was a Member of Legislative Assembly, it is the case of the prosecution that the petitioner allocated funds to the tune of `32,84,692/- between the years 2009 and 2011 under the Karnataka Legislators’ Local Area

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Development Scheme, 2014 (‘Scheme’ for short) to the account of the Vidhya Peetha. Allegations spring that the petitioner was an MLA of Belagavi Rural Constituency and the Vidhya Peetha did not fall under the Belagavi Rural Constituency and, therefore, the petitioner had violated the terms of the Scheme under which the aforesaid sum of `32,84,692/- had been utilized. The complaint further alleged that misusing and abusing the power of being an MLA, the funds are allocated to his own institution all contrary to the Rules. The complaint is made before the respondent/Lokayukta which becomes a crime in Crime No.3 of 2014 against the petitioner and four others for offences punishable as afore-quoted. The crime comes to be registered on 24-03-2014. While filing the charge sheet all other accused are dropped and the charge sheet is filed only against the petitioner. Filing of the charge sheet and continuation of further proceedings is what has driven the petitioner to this Court in the subject petition.

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The learned counsel appearing for the petitioner would vehemently contend that the petitioner has committed no crime. It is a matter of record that he has in fact recommended release of

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funds under the Scheme not only to the Vidhya Peetha but for construction of a community hall and several other public programmes. When the complaint comes up in the year 2012 the petitioner returned the entire amount of `32,84,692/- to its last pie. It is the submission that it was an inadvertent error that has happened without noticing that the institution did not come within his constituency but under the neighbouring constituency. It is contended that there were 5 accused at the time of registering the crime. But, the Lokayukta Police have deliberately filed the charge sheet against the petitioner alone, as he was belonging to opposite party, at the time when the charge sheet was filed.

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On perusal of the charge sheet, the learned counsel would contend that petitioner has only recommended for sanction of the amount under the Scheme, but it is executed by the Deputy Commissioner. Two Deputy Commissioners with one former Deputy Commissioner were arrayed as accused Nos. 2 to 4. They are all dropped from the array of parties. The petitioner could not have been proceeded against, notwithstanding the fact that not a rupee has been gained out of the alleged incident. It was an error and

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the error has been rectified. Section 13(1)(c) of the Act could not have been alleged against the petitioner is the emphatic submission of the learned counsel appearing for the petitioner. She would seek quashment of the entire proceedings.

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Per contra, the learned counsel for the respondent/ Lokayukta would refute the submissions and by taking this Court through the documents that form part of the charge sheet seeks to demonstrate that it was not of any inadvertence that the amount was demanded to be dropped into the institution run by the petitioner. The petitioner knowing fully well that the institution did not come under his jurisdiction, recommended release of the amount. Return of the money to its last pie and not utilizing any amount will not absolve the petitioner of the allegation of misusing the funds under the Scheme. He would contend that insofar as accused 2 to 5 are concerned, there was no material against them except the fact that they had executed the recommendation of the petitioner. He would support dropping of charges against IAS officers. He would seek to refute the fact that immediately the amount was returned to coffers of the State. It is his submission

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that it was returned only after registration of the crime and not any day before registration of the crime, but it was before filing of the charge sheet.

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The learned counsel appearing for the petitioner would join issue to clarify that the Apex Court in the cases of (a) CENTRAL BUREAU OF INVESTIGATION v. B.B. AGARWAL¹ , (b) CBI v. SADHU RAM SINGLA² and coordinate Bench of this Court in the case of M/s. MEVIDA STEELS PRIVATE LIMITED v. STATE BY CBI-SPE³ while considering identical circumstances quashed the proceedings against the accused therein, to which the learned counsel for the Lokayukta would seek to place reliance on the judgment of the Apex Court in the case of VISHWA NATH v. STATE OF JAMMU AND KASHMIR⁴ .

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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1 (2019) 15 SCC 522

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2 (2017) 5 SCC 350

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3 2014 SCC OnLine Kar. 12188

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4 (1983) 1 SCC 215

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The afore-narrated facts are not in dispute. The link in the chain of events and the dates would require a little elaboration. It is not in dispute that the petitioner was at the relevant point in time a Member of the Legislative Assembly of the State of Karnataka as a returned candidate for Belagavi Rural Constituency from BJP. It is a matter of record that he has been representing the constituency for close to 30 years. The petitioner along with others is said to be running a Vidhya Peetha in the name and style of Gomatesh Vidhya Peetha. For every legislator in the State of Karnataka certain funds are allocated under the Scheme. Certain clauses of the Scheme are

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germane to be noticed. Clauses 1.4, 1.5, 2.1, 2.7, 2.10, 3.3 to 3.9 and 4.3 of the scheme read as follows:

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1.4 Each Legislator has the choice to suggest to the Deputy Commissioner of the District, works for this amount per year, to be taken up in his/her constituency.

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1.5 The KLLADS follows a participatory demand responsive development approach to address infrastructure development requirements of the local area within a Legislator’s Constituency. It also provides flexibility in taking up works which are otherwise not covered by other government programmes.

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2.1 The Planning Department, Government of Karnataka, is the Nodal Department for this scheme at the

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State Level. The Deputy Commissioners of the districts are the nodal implementing officer of the schemes at the district level. In case of Legislators whose constituencies cover more than one district, the Government shall nominate a Nodal Deputy Commissioner for the implementation of the scheme as per the option of the Legislator. The Legislators representing more than one district will give their choice of district to the Nodal Deputy Commissioner as per proforma at Annexure- I.

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2.7 The Deputy Commissioner will select the Government Department/Local Body to whom the work will be entrusted. The work should be scrupulously executed by the department/local body following established Government procedures and the provisions of the Karnataka Transparency in Public Procurement Act, 2000.

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2.10 The Deputy Commissioner should ensure that provision for maintenance and upkeep of the works to be taken up under this scheme is forthcoming from the concerned local body or the relevant agency to whom the assets are transferred for operation and maintenance. The Deputy Commissioner should ensure that the funds for the operation and maintenance of the assets are met from the relevant agency to whom the assets would be transferred

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3. SANCTION AND EXECUTION OF WORKS

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3.3 The Deputy Commissioner shall examine the proposals as per the guidelines of the KLLADS and give due intimation to the Legislator after according administrative approval. In case of problems due to non availability of site, etc intimation should be communicated to the Legislator within 30 days from the date of receipt of the proposal, so that the Legislator can propose an alternate work.

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3.4 The Deputy Commissioner shall refer the proposal to the implementing agency [e.g. Panchayat Raj Engineering Department (PRED), Public Works Department (PWD), Karnataka Rural Infrastructure Development Limited (KRIDL), Nirmithi Kendra and other implementing agencies

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of local governments as the case may be] for preparation of technical estimates. The estimates, with necessary technical sanction from competent authority, shall be submitted to the Deputy Commissioner within 30 days for administrative approval.

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The Assistant Executive Engineers have been delegated the powers to accord the technical sanction of works up to Rs.5.00 lakh vide G.O No.PD 39 YOVIVI 2012(P) Dated: 10.07.2012.

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3.5 The Deputy Commissioner shall sanction the work after verifying that the work does not entail:

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(i) Recurring expenditure.

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(ii) Schemes involving staff,

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(iii) Conduct of surveys/investigations, (iv) Payment of old bills.

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3.6 The Deputy Commissioner shall accord administrative approval for the work duly ensuring that estimates are not unnecessarily split to circumvent Karnataka Transparency in Public Procurement Act, 2000 and other procedures of implementation. Deputy Commissioner shall be competent to accord administrative approval for all works as per Transaction of Business Rules.

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3.7 All administrative and technical approval should be accorded within 30 days from the date of approval of action plan.

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3.8 The Deputy Commissioners of the concerned districts would be responsible for the co-ordination and overall supervision of the works under this scheme at the district level. The preparation of the detailed estimate, its technical sanction, supervision during execution and maintenance of accounts will be the responsibility of the concerned executing authority.

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3.9 In case of increase in the estimates/outlays in respect of a particular work, the overall allocation for the constituency should not exceed the annual allocation. Premium/cost escalation for tendered works, if any, over and

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above the estimated cost also will have to be accommodated within the annual allocation for the scheme. The competent technical authority shall take prior approval of the Deputy Commissioner before approving such tendered works. The DC should take the consent of the Legislator for the revised technical estimate, and then accord administration approval.

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4.3 Release of funds by Deputy Commissioner: After according administrative and technical approval, Deputy Commissioner should release 75% of the estimated cost of the work. The remaining 25% should be released within 15 days after completion of work, duly checking whether the work is (i) executed in the sanctioned site/spot, (ii) it is as per the estimated cost of the work, (iii) the quality of the work executed is satisfactory, (iv) utilization certificate for the first installment has been obtained and (v) completion certificate, cash book records and extract of measurement book from the implementing agency has been obtained.”

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The Scheme envisages certain allocation of funds to each legislator.

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Each legislator of the local area in his constituency is entitled for certain amounts for taking up works which are not otherwise covered under Government programmes. The Planning Department of Government of Karnataka is the nodal Department to bring in the conditions of the Scheme at the State Level and the Deputy Commissioners of the Districts are the nodal implementing officers of the Scheme in the Districts. The local legislator is entitled to recommend sanction of funds. The Deputy Commissioner is to get the proposal from all the legislators of the District and convene a

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meeting of implementing agency and release the funds after arriving at the conclusion that the funds are required. The administrative approval for grant of funds is also at the hands of the Deputy Commissioner. Clause 4.3 deals with release of funds. The power to release funds is also with the Deputy Commissioner. The petitioner being a local legislator submits a recommendation for release of funds. The quantum of funds is what is narrated hereinabove. The release of funds results in all the nuances under the aforesaid Scheme and the amount comes into the account of Vidhya Peetha. This happens between 2009 and 2011.

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An organization by name Kranti Sena of Belagavi objects

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to the release of funds by its complaint dated 14-09-2012. The relevant paragraph of the complaint reads as follows:

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“ ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼À PÁAiÀiÁð®AiÀÄ ¨É¼ÀUÁ«AiÀÄ ¥ÀvÀæ. PÀæ.r¹.PÉJ¯ï.J¯ïJrJ¸ï. ¹.Dgï.20/12-13 ¢:31-07-2012 ©qÀÄUÀqÉ ªÀiÁrzÀ C£ÀÄzÁ£ÀzÀ «ªÀgÀ

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C	PÁªÀÄUÁj	PÁªÀÄUÁj «ªÀgÀ	CAzÁdÄ	ªÉÆzÀ®£À	ZÉPï	JgÀqÀ£ÉÃ	ZÉPï £ÀA/¢£ÁAPÀ
£ÀA	£ÀA§gÀ		ªÉZÀÑ	PÀAvÀÄ	£ÀA/¢£ÁAPÀ	PÀAvÀÄ
1	3	¨É¼ÀUÁ« £ÀUÀgÀzÀ »AzÀªÁrAiÀÄ°èAiÀÄ UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ PÀ£ÀßqÀ ºÁUÀÆ DAUÀè ªÀiÁzsÀåªÀÄ ±Á¯ÉUÀ¼À DlzÀ ªÉÄÊzÁ£À ¸ÀÄzsÁgÀuÉ	2,50,000/-	1,87,500/-	H-609724 20-2-10	62,500/-	H-830062 20-2-10
2	6	ªÀÄZÉÑÃ UÁæªÀÄzÀ UÉÆÃªÀÄmÉÃ±À	5,00,000/-	3,75,000/-	H-609901	1,25,000/-	H-802663

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		«zÁå¦ÃoÀzÀ PÀ£ÀßqÀ ¥sËqsÀ ±Á¯Á PÀlÖqÀ ¤ªÀiÁðt			26-7-10	-	18-6-12
3	7	¨É¼ÀUÁ« £ÀUÀgÀzÀ »AzÀªÁrAiÀÄ°èAiÀÄ §zÀæ¨ÁºÀÄ £À¹ðAUï ±Á¯ÉAiÀÄ PÉÆÃoÀr ¤ªÀiÁðt	2,50,000/-	1,87,500/-	H-609724 20-2-10	62,500/-	H-830124 04-11-10
4	12	ªÀÄZÉÑÃ UÁæªÀÄzÀ UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ D¦üÃ¸ï PÀlÖqÀ ¤ªÀiÁðt	5,00,000/-	3,75,000/-	H-609901 26-7-10	1,25,000/- -	H-802663 18-06-12
5	--	¨É¼ÀUÁ« UÉÆÃªÀÄmÉÃ±À ¥Á°mÉQßPï PÉÃAzÀæPÉÌ UÀtPÀ AiÀÄAvÀæUÀ¼À ¥ÀÆgÉÊPÉ	9,91,692/-	9,91,692/-	BX 507833 31-03-10
6	7	UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ »AzÀªÁr ¨É¼ÀUÁ« ©©J PÁ¯ÉÃf£À ¸ÀÄvÀÛ PÀA¥ËAqÀ UÉÆÃqÉ ¤ªÀiÁðt	1,36,000/-	1,02,000/-	H-830141 16-11-10	34,000/-	H-830962 05-09-11
7	8	UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ »AzÀªÁr ¨É¼ÀUÁ« ©©J PÁ¯ÉÃf£À ¸ÀÄvÀÛ PÀA¥ËAqÀ UÉÆÃqÉ ¤ªÀiÁðt	2,19,000/-	1,64,250/-	H-830141 16-11-10	54,750/-	H-830962 05-09-11
8	9	UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ »AzÀªÁr ¨É¼ÀUÁ« EAVèÃµï ¥ÁæxÀ«ÄPÀ ±Á¯ÉAiÀÄ ¸ÀÄvÀÛ PÀA¥ËAqÀ UÉÆÃqÉ ¤ªÀiÁðt	2,19,000/-	1,64,250/-	H-830141 16-11-10	54,750/-	H-830962 05-09-11
9	10	UÉÆÃªÀÄmÉÃ±À «zÁå¦ÃoÀzÀ »AzÀªÁr ¨É¼ÀUÁ« PÀ£ÀßqÀ ¥ÁæxÀ«ÄPÀ ±Á¯ÉAiÀÄ ¸ÀÄvÀÛ PÀA¥ËAqÀ UÉÆÃqÉ ¤ªÀiÁðt	2,19,000/-	1,64,250/-	H-830141 16-11-10	54,750/-	H-830962 05-09-11
10	30	¨É¼ÀUÁ« vÁ®ÆPÁ ¥ÁæxÀ«ÄPÀ ²PÀëPÀgÀ ¸ÀºÀPÁj ¥ÀwÛ£À ¸ÀAWÀ ¤ ²ªÁf£ÀUÀgÀ ¨É¼ÀUÁ« EzÀgÀ ºÀwÛgÀ ¸ÀªÀÄÄzÁAiÀÄ ¨sÀªÀ£À ¤ªÀiÁðt (MAzÀ£ÉÃªÀÄºÀr - ¨sÁUÀ-1)	1,00,000/-	75,000/-	H-802302 28-02-12
11	53	¨É¼ÀUÁ« vÁ®ÆPÁ ¥ÁæxÀ«ÄPÀ ²PÀëPÀgÀ ¸ÀºÀPÁj ¥ÀwÛ£À ¸ÀAWÀ ¤. ²ªÁf£ÀUÀgÀ ¨É¼ÀUÁ« EzÀgÀ ºÀwÛgÀ ¸ÀªÀÄÄzÁAiÀÄ ¨sÀªÀ£À ¤ªÀiÁðt (JgÀqÀ£ÉÃªÀÄºÀr - ¨sÁUÀ-2) 34,84,69	1,00,000/- 2/-	75,000/-	H-802302 28-02-12

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ªÉÄÃ®ÌAqÀ «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRzÀ£ÀÄéAiÀÄ ªÀiÁ£Àå d£À¦æÃAiÀÄ ¨É¼ÀUÁ« UÁæ«ÄÃt ±Á¸ÀPÀgÁzÀ ²æÃ ¸ÀAdAiÀÄ ¥ÁnÃ®jUÉ £ÀªÀÄ¸ÀÌgÀUÀ¼ÀÄ. ªÀiÁ£ÀågÉ vÁªÀÅ ¨É¼ÀUÁ« UÁæ«Ä£À ±Á¸ÀPÀgÀÄ. ±Á¸ÀPÀgÀ ¸ÀÄvÉÆÛÃ¯É ¥ÀæPÁgÀ ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼À ºÉÃ½PÉ ºÁUÀÆ ¥ÀvÀæzÀ ¥ÀæPÁgÀ ¸ÀgÀPÁgÀ vÀªÀÄUÉ ¤ÃrzÀ ºÀtªÀ£ÀÄß vÁªÀÅ vÀ¥ÁàUÉ vÀªÀÄä ¸ÀéAvÀPÉÌ G¥ÀAiÉÆÃUÀ ªÀiÁrPÉÆAr¢j JAzÀÄ PÀAqÀÄ §gÀÄ¢zÉ. ±Á¸ÀPÀgÀ ¸ÀÄvÉÆÛÃ¯ÉUÉ CªÀªÀiÁ£À ªÀiÁr¢j EzÀgÀ vÀªÀÄä C©ü¥ÁæAiÀÄ J£ÀÄß ºÉÃ½.

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ªÀiÁ£ÀågÉ, vÁªÀÅ ±Á¸ÀPÀgÀ ¸ÀÄvÉÆÛÃ¯É §UÉÎ «ªÀgÀ ¤ÃqÀzÉ ºÉÆÃzÀgÉ £ÁªÀÅ vÀªÀÄä «gÀÄzÀÞ ªÀiÁ£Àå «±ÉÃµÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ £ÁåAiÀiÁ®AiÀÄzÀ°è PÉÃ¸ï zÁR®Æ ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ.

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ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ.”

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The amount sanctioned is 34,84,692/- under various schemes. Out of all the amounts, these are the objectionable amounts according to the complainant. Immediately after the objection comes about on 14-09-2012, deliberations happen as to whether it was within the jurisdiction to claim the said amount or otherwise. Correspondences galore between the authorities after which the Karnataka Lokayukta on 24-03-2014 on the basis of a complaint by one Sri B.S. Patil, Police Inspector of Karnataka Lokayukta, Belagavi registers a crime in Crime No.3 of 2014 for offences punishable under Sections 13(1)(c) r/w 13(2) of the Act. The allegation was that between 2009 and 2011 32,84,692/- had been allotted beyond the jurisdiction of the constituency and to the Vidhya Peetha. After registration of the crime it is an admitted fact that the petitioner refunded the entire amount to the State notwithstanding

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the fact that certain works had been undertaken by the petitioner under the Scheme. The return of the amount to its last pie is not in dispute. Notwithstanding the return of the amount, the Lokayukta Police file a charge sheet on 26-04-2017 for the afore-quoted offences. The petitioner is the sole accused. The other four accused who were the Deputy Commissioners and other officers are dropped from the array of accused while filing the charge sheet.

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In the light of the petitioner being arrayed as a sole accused and the fact that entire amount is returned to its last pie, whether further proceedings should continue is what is required to be noticed. As quoted hereinabove, the entire responsibility of implementation of the Scheme and disposal of the amount lies with the Deputy Commissioner and other officers like the Assistant Executive Engineer after such delegation for execution of works. Sanction and execution is all in the realm of power of the Deputy Commissioner. It is a matter of record that 3 of the Deputy Commissioners at the relevant point in time and one Assistant Executive Engineer were arrayed as accused while registering the crime. The accused while registering the crime were as follows:

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(i) Sri. Sanjay Balagonda Patil, Legislator, Belagavi (Rural).

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(ii) Dr. J.Ravishankar, former Deputy Commissioner, Belagavi … …

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(iii) Dr. Ekaroop Kaur, Deputy Commissioner, Belagavi,

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(iv) Sri. V.Annai Kumar, Deputy Commissioner, Belagavi,

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(v) Mahaveera J.Paramaja, AEE. … …

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There were two Deputy Commissioners and one Assistant Executive Engineer and the other, former Deputy Commissioner who was the implementing authority under certain Schemes. Therefore, there were three IAS Officers and one Assistant Executive Engineer who were arrayed as accused. For dropping all the names of other accused except the petitioner, there is no reason indicated by the prosecution. A caveat , it should not be construed that this Court is examining as to why they were dropped. But, the fact remains that all other accused are dropped. The defence of the prosecution for dropping the other accused is that they only followed the instructions of the petitioner and, therefore, have committed no crime.

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As observed hereinabove, it is the petitioner who recommends and officers would execute. It was always open to the officers to bring it to the notice of the petitioner that the amount could not be sanctioned, as it was beyond the jurisdiction of Belagavi Rural Constituency and the institution came under Belagavi Central Constituency. That having not been put forth, as no document is placed on record, the crime to be continued against the petitioner at this juncture becomes an abuse of the process of law. If the petitioner had gained out of the said amount sanctioned and had misappropriated funds or amassed wealth disproportionate to his known source of income it would have been a circumstance altogether different. The petitioner has returned the entire amount to its last pie. The returning of the amount is not in dispute. The only contention is that mere return of the amount by the petitioner will not absolve ingredients of the offence under the Act. What is alleged against the petitioner is offences punishable under Section 13(1)(c) of the Act which was in the statute book at the time of the alleged commission of offence. It reads as follows:

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“ 13. Criminal misconduct by a public servant .— (1) A public servant is said to commit the offence of criminal misconduct,—

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… … …

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(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.”

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The public servant is said to be committing a criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so. Therefore, the public servant should have fraudulently misappropriated the amount for his own use or any property entrusted to him. The misappropriation in the case at hand would tumble down, in the light of the fact that the amount is returned to its last pie. Though in certain circumstances the return of the money would not absolve a public servant of the intention to misappropriate, the intention in the case at hand is absent inasmuch as for the development of either the institution which was a charitable trust or for other public purpose the amount was said to be recommended. It is not a clandestine act on the part of the petitioner or the other accused. It has passed through several rungs of clearance before the amount was released. All other

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officers who were in the rung of clearance have all been dropped and the amount to its last pie is returned. There is no loss to the public exchequer and continuing the proceedings at this juncture, in the peculiar facts noticed hereinabove, would become an abuse of the process of law and result in miscarriage of justice.

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14. For the aforesaid reasons, the following:

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O R D E R

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(i) Criminal petition is allowed.

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(ii) Proceedings in Spl. Case No.35 of 2017 (Crime No.3/2014) pending before the IV Additional District and Sessions Judge, and Special Judge at Belagavi stand quashed.

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(iii) It is made clear that the observations made in the course of the order are only for the purpose of considering the case of the petitioner under Section 482 of the Cr.P.C. which would not influence or bind any

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other proceedings pending between the parties before any other fora.

Sd/JUDGE

bkp CT:SS

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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[SRI.SANJAY BALAGONDA VS. STATE OF KARNATAKA,]

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07.11.2024

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(VIDEO CONFERENCING / PHYSICAL HEARING)

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER 'BEING SPOKEN TO'

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The Court heard the matter and disposed it in terms of its order dated 19.03.2024. The learned counsel appearing for the petitioner has moved the matter for being spoken to, on the ground that words proceedings in Spl. Case No.35 of 2017 (Crime No.3/2014) pending before the IV Additional District and Sessions Judge, and Special Judge at Belagavi, is typographical error in the operative portion. Therefore, the clause (ii) shall read as follows:

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(ii) Proceedings in Spl.Case No.1283 of 2021 pending before the LXXXI Additional City Civil and Sessions Judge Bengaluru (CCH-82) stand quashed.

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This order shall be treated as part and parcel of the final order disposed on 19.03.2024.

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Sd/(M.NAGAPRASANNA) JUDGE

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List No.: 1 Sl No.: 1

Sri.Sanjay Balagonda v. State of Karnataka

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Sri.Sanjay Balagonda v. State of Karnataka

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